| U.S. Circuit Court for the District of Southern New York | Dec 15, 1868
The plaintiff is, by profession, a dramatic author, his business being to compose, write, and produce on the theatrical stage, dramatic compositions, commonly called plays. The defendants are the managers of a public place of theatrical amusement in the city of New York, called “Niblo’s Garden.” Before the 1st of August, 1SC7, the plaintiff composed and wrote a dramatic composition called “Under the Gaslight,” and on that day he took the proper steps to secure to himself a copyright for the composition, under the provisions of the act of February 3, 1831 (4 Stat. 436), by depositing before publication, a .printed copy of the title of the composition, as author and proprietor, in the clerk’s office of the district court of the southern district of New York, where he resided at the time.
The act of 1831 confers upon the author and proprietor of a dramatic composition, duly copyrighted, the sole right and liberty of printing, reprinting, publishing, and vending such composition, in whole or in part, for the term of twenty-eight years from the time of recording the title of such composition in the manner directed by the act. The act of August 18, 185G (11 Stat. 13S), provides, that any copyright thereafter granted under the laws of the United States, “to the author or proprietor of any dramatic composition, designed or suited for public representation, shall be deemed and taken to confer upon the said author or proprietor, his heirs and assigns, along with the sole right to print and publish the said composition, the sole right also to act, perform, or represent the same, or cause it to be acted, performed, or represented, on any stage or public place, during the whole period for which the copyright is obtained.”
The bill alleges that the plaintiff’s play was designed and suited for public representation; that it was represented for the first time on the 12th of August, 1SG7, under his direction and for his benefit, at the New York Theatre, a public place of theatrical amusement in New York, and was thenceforward represented there for eight consecutive weeks; that it met with great success, attracted crowds of persons, and was pecuniarily profitable to the plaintiff to a large amount; that the particular cause of such success was what was commonly called, after such public performance, the “Railroad Scene,” at the end of the third scene of the fourth act, in which one of the characters is represented as secured by another, and laid helpless upon the rails of a railroad track, in such manner, and with the presumed intent, that the railroad train, momentarily expected, shall run him down and kill him, and, just at the moment when such a fate seems. inevitable, another of the characters contrives to reach the intended victim, and to drag him from the track as the train rushes in and passes over the spot; that this incident and scene was entirely novel, and unlike any dramatic incident known to have been theretofore represented on any stage, or invented by any author before the plaintiff so composed, produced, and represented the same; that the playing of said composition and scene caused the same to become famous in all parts of the United States and Canada, and in England; that the chief value of the composition and its popularity depend upon said “railroad scene;” that it was repeatedly produced and represented by and for the advantage of the plaintiff, in many cities and ‘towns .of the United States and Canada,
The defence to the application, on the facts, is confined to showing, by affidavits, that the following matters were known prior to the taking out by the plaintiff of his copyright, namely, the representation on a stage of a train of cars drawn by a locomotive engine on a railroad; a like representation wherein the train appeared to run over a man lying on the track; and a like representation wherein the train appeared to run over a man lying on the track, who had been thrown thereon in a helpless condition by another of the characters, in order that he might he run over and killed. A story called “Captain Tom’s Fright,” in “The Galaxy” for March 15th, 18G7, is also adduced to affect the validity of the plaintiff’s copyright.
In the plaintiff’s play, there is a surface railroad, with a railroad station, and a signal-station shed, or store-room. A signal man appears, and a woman named Laura, At the request of Laura, the signal man locks her in the shed. There are some axes in it. One Snorkey then appears. The signal man then goes off. One Byke then enters, with a coil of rope in his hand, and throws it over Snorkey, and tightens it around his arm, and coils it around his legs, and then lays him across the track and fastens him to the rails, and goes off. having, by language, given it to be understood that the intention is that Snorkey shall be run over by the train and killed. Laura, from a window' in tbe shed, sees what is done. The steam w'histle of tbe train is beard. She takes an axe and strikes the door. The whistle is heard again, with the rumble of the approaching train. She gives more blow's on the door with the axe, it opens, she runs and unfastens Snorkey, the lights of the engine appear, and she moves Snorkey's head from the track as the train rushes past. This incident occupies the w'hole of the third scene of the fourth act. There is a good deal of conversation, first, betw'een the signal man and Laura, and then between Snorkey and the signal man, and then between Byke and
In the play of “After Dark,” the “railroad •scene” is in the third act. In the first scene ■of that act, one Gordon Chumley is rendered insensible by drugs, and one Old Tom is thrown by force into a wine vault. In the second scene of that act, Old Tom is represented as in the vault. There is an orifice in the vault, which opens upon the track •of an underground railroad. The rumbling of cars is heard, and lights flash through the ■orifice. Old Tom, through a door into .an ¡adjoining vault, sees two of the characters ■carry Chumley, and break a hole through a wall, and pass the body of Chumley through the hole, for concealment, as he supposes, in a well or vault Old Tom then finds an iron bar, and resolves to attempt •escape, by enlarging the orifice in the wall opening on the railroad. Then follows scene third. The railroad is seen, with a circular • orifice which ventilates the cellar in which Old "Tom is. The body of Chumley is seen lying •across the rails, and the arm of Old Tom, and then his head, are passed through the •orifice. For this much of the scene there are only stage directions, without spoken words. The following is a verbatim copy of the rest of the scene, the parts in parentheses being stage directions: “Old Tom. About four • courses of bricks will leave one room to pass. What is that on the line? There is something, surely, there. (A distant telegraph alarm rings. The semaphore levers play, and the lamps revolve.) Great Heaven! ’tis Gordon. I see his pale upturned face — he lives! Gordon! Gordon! I’m here. He docs not answer me. (A whistle is heard, and distant train passes.) Ah! murderers. I see their plan. They have dragged his insensible body to that place, and left him there to be killed by a passing train. Demons! Wretches! (He works madly at the orifice. The bricks fall under his blows. The orifice increases. He tries to struggle through it.) Not yet. Not yet. (The alarm rings again. The levers in the front play. The red light burns, and a white light is turned to L. H. tunnel. The wheels of an approaching train are heard.) Oh, heaven! give me strength-down — down. One moment! ,(A large piece of wall falls in, and Old Tom comes with it.) See, it comes, the monster comes. (A loud rumbling and crashing sound is heard. He tries to move Gordon, but seeing the locomotive close on him, he flings himself on the body, and, clasping it in his arms, rolls over with it forward. A locomotive, followed by a train of carriages, rushes over the place, and, as it disappears, Old Tom frees himself from Chumley, and gazes after the train.)” The play of “After Dark” has never been published by Boucieault, although printed by him for private use.
The first inquiry is, what is meant, in the act of 1856, by a “dramatic composition,” what is meant by the “public representation” of a dramatic composition, and what is meant by the right to “act, perform, or represent” a dramatic composition, on a “stage or public place.” The act of 1856 confers on the author or proprietor of a copyrighted “dramatic composition, designed or suited for public representation,” the sole right of acting, performing, or representing the same on a stage or public place, in addition to the sole right to print and publish such composition. The latter right must be considered as 'being conferred by the act of 1S31, for, although that act only speaks of a copyiight for a “book or books, map, chart, musical composition, print, cut, or engraving.” yet, under the language of the act. of 1S50, a “dramatic composition, designed or suited for public representation,” must be regarded as embraced within the act of 1S81.
A composition, in the sense in which that word is used in the act of 1S56, is a written or litérary work invented and set in order. A dramatic composition is such a work in which the narrative is not related, but is represented by dialogue and action. When a dramatic composition is represented, in dialogue and action, by persons who represent it as real, by performing or going through with the various parts or characters assigned to them severally, the composition is acted, performed, or represented; and, if the representation is in public, it is a public representation. To act, in the sense of the
Nor is this a ease of first impression. An arrangement of musical notes, forming a tune or air, is a musical composition; and the author who has invented it and sol it in order, and copyrighted it, is entitled to protection. The extent of that protection has been the subject of judicial interpretation.
Now, in consonance with the princ'ples laid down by Lord Lyndhurst, the plaintiff is as much entitled to protection in respect of a substantial and material original part of his “railroad scene” as be is in respect of the whole.
■ The substantial identity between the two scenes would naturally lead to the conclusion, that the later one had been adapted from the earlier one. The charge of actual plagiarism on the part of Boueieault, made in the bill, is not denied. It is hardly possible that the resemblances are accidental, and that the differences are not merely colorable, with a view to disguise the plagiarism. The true test of whether there is piracy or not, is to ascertain whether there is a servile or evasive imitation of the plaintiff’s work, or whether there is a bona fide original compilation, made up from common materials, and common sources, with resemblances which are merely accidental, or result from the nature of the subject Emerson v. Davies [Case No. 4,436].
Nothing that has been adduced on the part of the defendants affects the validity of the plaintiff s copyright, on the question of the originality and novelty of the “railroad scene” in his play.
The sale of Boucicault’s play to other persons, with a view to its public representation, makes the seller a participant in causing the play to be publicly represented.
NOTE [from original report in 3 Am. Law Rev. 456]. The record of title may be made after representation as well as before. Roberts v. Myers [Case No. 11.906], case of the “Oc-toroon.” But it must be made before publication, otherwise the protection of the statute is lost. Bartlett v. Crittenden [Id. 1,076], “System of Bookkeeping.” See, also. Jollie v. Jaques [Id. 7,437], case of the “Serious Family Polka;” Baker v. Taylor [Id. 782], case of the “Sacred Mountains;” Wheaton v. Peters, 8 Pet. [33 U. S.] 591, case of “Peters’ Condensed Reports;” Dwight v. Appleton [Case No. 4,215], case of “Dwight's Theology;” Ewer v. Coxe [Id. 4,584], case of the “American Dispensatory.”
NOTE [from original report in 3 Am. Law Rev. 456]. Tliis delivery of the copy of the published book is a necessary prerequisite to claiming protection of the statute against unauthorized publication, except under § 9, act of 1831 [4
NOTE [from original report in 3 Am. LawRev. 457J. The value of the piece in Canada could not be material to the issue, and it maybe questioned if the rights of the English author in Canada can be affected by a decision here.
NOTE [from original report in 3 Am. Law Rev. 45SJ. In the absence of an international copyright, the performance of an English play in England, without the consent of an American author, seems immaterial. The English copyright act (7 & S Viet. c. 12, § 19) requires the first publication or representation of a work, except such works as come within that statute, to be made in England, in order to have legal protection there. Boueicault v. Delafield, 33 Law Jour. (N. S.) 3S, case of the “Colleen Bawn,” a play written, copyrighted, and first performed, py an English author, then a resident of the United States, within the United States, never printed by tbe author's consent, subsequently copyrighted in England, whore the vice cliuucullor held the English copyright bad.
NOTE [from original report in 3 Am. Law Rev. 454], The outline of this story may be given as follow's: Captain Tom is engineer on a railway in charge of a construction gang. His gang mutinies one night, his arms are taken from him, and he is knocked down senseless. When he recovers, he finds he is bound and laid on the ground, an iron bar under his head, another under his legs. By degrees, he finds that he is fastened to the rails of a track on the side of a river, near a bridge, which is under repair by Captain Tom's gang. He wonders if the train has passed, due at eleven o’clock p. m. He sees, far over the prairie, the head-light of the locomotive, like a distant star. He screams for help and hears only the mutineers carousing. The train comes nearer and nearer, the bridge trembles at its approach, the lights glare in his eyes, the hot breath of the engine is in his face. He swoons from terror. The wheels are within a foot of his head. The engine and train had passed on a side track, temper'!- lv 1-ud down for 'the repairs of the brid.'e while Captain ’I\,m was tied on the straight track of the road.
NOTE (from original report in 3 Am. Law Rev. 4(!8]. There may be a copyright, as in the case of the “Low-Backed Car,” where the author wrote words, accompaniment, and prelude, to the old air of the “Jolly Ploughboy.” Lover v. Davidson, 1 C. B. (N. S.) 182; or, as in the case of “Pestel,” where an author wrote words for an old air, and got a friend to write an accompaniment, and then entered the whole at Stationer's Hall. It was held, his assignee had copyright in the accompaniment. Leader v. Purday, 7 C. B. 4.
NOTE [from original report in 3 Am. Law Rev. 465], In the ease of Turner v. Robinson. 10 Ir. Ch. 121, on appeal, Id. 510, the plaintiff was proprietor of a picture, “Death of Chatterton,” had publicly exhibited it in sundry places, and was having an engraving made from it. The picture had been engraved in a catalogue previously, in a cheap way, and no objection was made to this by the proprietor. The defendant arranged a tableau vivant in his studio following the grouping of, and with a painted background like the one in the picture, and took a pair of photographs for the stereoscope from this group. Sale of the photographs was enjoined. In considering whether there is infringement of copyright, we often have to consider the quality of the matter taken, rather than its quantity. Gray v. Russell [Case No. 5,728], case of “Adam’s Latin Grammar;” Folsom v. Marsh [Id. 4,901], case of “Spark’s Life of Washington;” Story v. Holcombe [Id. 13,497], case of “Story’s Equity Pleadings.” And it is no defeuce that only part of the work is taken, because the owner of the copyright owns it all. Folsom v. Marsh, supra. In an action for penal.ties the rule is different; the whole work must be taken, not merely so much as to render one • liable to action for infringement. Rogers v.
NOTE [from original report in 3 Am. Law Rev. 4G7]. Descriptive matter in a record of title is no part of the title. Thus a book described in the record as in a certain number of volumes may be published in a diiforent number. Dwight v. Appleton [Case No. 4,213],